Larry Catá Backer's comments on current issues in transnational law and policy. These essays focus on the constitution of regulatory communities (political, economic, and religious) as they manage their constituencies and the conflicts between them. The context is globalization. This is an academic field-free zone: expect to travel "without documents" through the sometimes strongly guarded boundaries of international relations, constitutional, international, comparative, and corporate law.

Since 2010, I have been posting on the development of a new course I
have been developing for our first year law school students, "Elements
of Law." The course originally had a quite modest objective--to
introduce law students to legal research and reasoning through case law,
statutory interpretation, and legal history, processes, and
institutions. I chose to broaden its objectives within these specific
parameters and development a framing and concepts course that would
provide a deep foundation to law students on the legal system they were
undertaking to study.

Grounded in the principles of the sociology of law,
the course has morphed into an effort to introduce students to law as a
self-referencing system with its own particular structures, premises,
constraints and language, with its own logic and taboos and its own
means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice,
Chichester : John Wiley and Sons Ltd, 1999) is then a critical element
in the way in which the legal system (in this case of the United States)
interacts with the world, both as a legal and as a
socio-economic-political actor. The course has also expanded from its
original narrow and technical focus, to a broader focus on principles
and the use of language and logic to build and operate a system of law.
That broadening has made it possible to offer the course not just to
first year law students, but also to graduate students in the social
sciences and in international affairs, as a grounding in the legal
systems that are important in their respective fields.

This post produces some of the materials I will be presenting to the
class. I offer these materials in hopes that they may prove of use and
that you might share comments, perspectives and suggestions as I develop
those materials on this site. Thanks.

This post includes a draft of Chapter 4 (Law Articulated by the Courts--Equity).

Friday, August 29, 2014

GlobeScan/SustainAbility publishes about five reports a year that analyze expert perspectives on a range of business and sustainability topics. On 25 August 2014 GlobalScan/SustainAbility released its - Findings from a new GlobeScan/SustainAbility Survey of industry experts on corporate transparency and specifically on how transparency drives performance. Their press release notes

Sustainability experts often point to stakeholder engagement and enhanced reputation as some of the benefits of corporate transparency. This survey reveals that corporate transparency brings even more value to companies. Seventy-nine percent of survey respondents indicated that corporate transparency positively impacts a company’s sustainability performance. While there are barriers to transparency driving change within companies, there are a number of transparency practices that can help better guide decision making and work towards sustainable change.

SustainAbility was founded in 1987. They describe themselves as evolving "alongside the broader sustainability
agenda and helped to define and shape the unique role of business within
it. On issues from consumption, transparency, stakeholder engagement
and strategy to innovation and transformation, we've helped hundreds of
clients and partners better understand and create business and societal
value in response to global challenges."

Globalscan describes itself thus: "for twenty-five years, GlobeScan has helped clients measure, understand and build valuable relationships with their stakeholders, and to work collaboratively in delivering a sustainable and equitable future. Uniquely placed at the nexus of reputation, brand and sustainability, GlobeScan partners with clients to build trust, drive engagement and inspire innovation within, around and beyond their organizations."

This post includes some of the findings from the report. They are interesting and their consequences are worth thinking about.

Since 2010, I have been posting on the development of a new course I have been developing for our first year law school students, "Elements of Law." The course originally had a quite modest objective--to introduce law students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions. I chose to broaden its objectives within these specific parameters and development a framing and concepts course that would provide a deep foundation to law students on the legal system they were undertaking to study.

Grounded in the principles of the sociology of law, the course has morphed into an effort to introduce students to law as a self-referencing system with its own particular structures, premises, constraints and language, with its own logic and taboos and its own means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice, Chichester : John Wiley and Sons Ltd, 1999) is then a critical element in the way in which the legal system (in this case of the United States) interacts with the world, both as a legal and as a socio-economic-political actor. The course has also expanded from its original narrow and technical focus, to a broader focus on principles and the use of language and logic to build and operate a system of law. That broadening has made it possible to offer the course not just to first year law students, but also to graduate students in the social sciences and in international affairs, as a grounding in the legal systems that are important in their respective fields.

This post produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.

This post includes a draft of Chapter 3 (Law Articulated by the Courts--Common Law).

Tuesday, August 26, 2014

One of the most interesting elements of the elaboration of an international legal architecture for the management of relations among states and for the constraints on the conduct of states within their own borders has been the dissonance between what a number of states believe they are creating and what the inhabitants of the international organizations created believe. Some states believe that they have created an instrument in international organizations that may be used in the course of inter governmental relations unconstrained by the legalisms that affect a state's behavior within their borders. Others believe that they have created a system of governance (some might call it law--and it may be so when such states have the power to force these rules on other states). Most interesting perhaps is the view from within the international bodies themselves.

(Pix (c) Larry Catá Backer 2014)

A recent speech given by Navi Pillay, the outgoing High Commissioner for Human Rights nicely frames the contradictions and constrains of the architecture for international peace and security that is the product of the premises of framework for organizing the community of states from a global community just emerging from the last global war in 1945, a community that has for all practical purposes now passed onto history. As described in the press release announcing the speech (which is quite short as far as these things go) it was noted that

Briefing a Security Council open debate on international peace and security, the High Commissioner listed examples where OHCHR's work has helped prevent, de-escalate and resolve crises. She noted that the scrutiny of Special Procedures and Treaty Bodies contributes to early warning of the human rights grievances that are the underlying causes of conflict. And yet, she said, despite increasing interest by the Security Council in human rights over the course of her tenure, "There has not always been a firm and principled decision by Members to put an end to crises. Short-term geopolitical considerations and national interest, narrowly defined, have repeatedly taken precedence over intolerable human suffering and grave breaches of - and long-term threats to - international peace and security. I firmly believe that greater responsiveness by this Council would have saved hundreds of thousands of lives."

Full text of the speech HERE. The speech is particularly useful for illustrating the quite specific self conception of the role of international organizations and the frustration that results when these self conceptions bump up against the realities of the more traditional and conventional thinking of its stakeholders.

My object in this post to to provide a gloss on that speech. Both the text of the speech and my gloss [in brackets] follow:

Since 2010, I have been posting on the development of a new course I
have been
developing for our first year law school students, "Elements of Law."
The course originally had a quite modest objective--to introduce law
students to legal research and reasoning through case law, statutory
interpretation, and legal history, processes, and institutions. I chose
to broaden its objectives within these specific parameters and
development a framing and concepts course that would provide a deep
foundation to law students on the legal system they were undertaking to
study.

Grounded in the principles of the sociology of law,
the course has morphed into an effort to introduce students to law as a
self-referencing system with its own particular structures, premises,
constraints and language, with its own logic and taboos and its own
means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice,
Chichester : John Wiley and Sons Ltd, 1999) is then a critical element
in the way in which the legal system (in this case of the United States)
interacts with the world, both as a legal and as a
socio-economic-political actor. The course has also expanded from its
original narrow and technical focus, to a broader focus on principles
and the use of language and logic to build and operate a system of law.
That broadening has made it possible to offer the course not just to
first year law students, but also to graduate students in the social
sciences and in international affairs, as a grounding in the legal
systems that are important in their respective fields.

This post produces some of the materials I will be presenting to the
class. I offer these materials in hopes that they may prove of use and
that you might share comments, perspectives and suggestions as I develop
those materials on this site. Thanks.

Tuesday, August 19, 2014

The Chinese Communist Party has recently accelerated its political work--moving deliberately to develop its operating theory to enhance its role as a vanguard party in China.

The Communist Party of China (CPC) will hold the fourth plenary session of the 18th central committee in October, to discuss key issues concerning the rule of law, it was announced on Tuesday.

The Political Bureau of the CPC Central Committee will discuss "governing the country according to law" on every front, it was announced after the Tuesday meeting, presided over by the CPC Central Committee's general secretary, Xi Jinping.

It was agreed that the rule of law is a must if the country will attain economic growth, clean government, culture prosperity, social justice and sound environment, and realize the strategic objective of peaceful development.

A statement after the meeting said that the rule of law is an intrinsic requirement of socialism with Chinese characteristics and crucial to modern governance. Governing according to law holds the key to the CPC's leadership, the people's well-being, deepening reform and long-term stability. The statement emphasized, that governing according to law has become more significant in the entire agenda of the Party and the nation, due to new circumstances. (Embassy of the People's Republic of China in Camnada, CPC to hold key session on rule of law, July 30, 2014)

This post includes the transcript of a conversation with Keren Wang, a PhD candidate at Penn State (Communication Arts and Sciences, School of Liberal Arts) and my co-author, about the recent strong movement at the highest levels of the Chinese Communist Party toward the institutionalization of rule of law systems with Chinese characteristics, including the petitioning system or shanfang. It is meant to provide a more conversational introduction to issues of rule of law, of the institutionalization of the relationship between the people and the administrative organs of state and of the role of a vanguard party.

Since 2010, I have been posting on the development of a new course I
have been
developing for our first year law school students, "Elements of Law."
The course originally had a quite modest objective--to introduce law
students to legal research and reasoning through case law, statutory
interpretation, and legal history, processes, and institutions. I chose
to broaden its objectives within these specific parameters and
development a framing and concepts course that would provide a deep
foundation to law students on the legal system they were undertaking to
study.

Grounded in the principles of the sociology of law,
the course has morphed into an effort to introduce students to law as a
self-referencing system with its own particular structures, premises,
constraints and language, with its own logic and taboos and its own
means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice,
Chichester : John Wiley and Sons Ltd, 1999) is then a critical element
in the way in which the legal system (in this case of the United States)
interacts with the world, both as a legal and as a
socio-economic-political actor. The course has also expanded from its
original narrow and technical focus, to a broader focus on principles
and the use of language and logic to build and operate a system of law.
That broadening has made it possible to offer the course not just to
first year law students, but also to graduate students in the social
sciences and in international affairs, as a grounding in the legal
systems that are important in their respective fields.

This post produces some of the materials I will be presenting to the
class. I offer these materials in hopes that they may prove of use and
that you might share comments, perspectives and suggestions as I develop
those materials on this site. Thanks.

Thursday, August 14, 2014

Since 2010, I have been posting on the development of a new course I have been
developing for our first year law school students, "Elements of Law." The course originally had a quite modest objective--to introduce law students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions. I chose to broaden its objectives within these specific parameters and development a framing and concepts course that would provide a deep foundation to law students on the legal system they were undertaking to study.

Grounded in the principles of the sociology of law, the course has morphed into an effort to introduce students to law as a self-referencing system with its own particular structures, premises, constraints and language, with its own logic and taboos and its own means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice, Chichester : John Wiley and Sons Ltd, 1999) is then a critical element in the way in which the legal system (in this case of the United States) interacts with the world, both as a legal and as a socio-economic-political actor. The course has also expanded from its original narrow and technical focus, to a broader focus on principles and the use of language and logic to build and operate a system of law. That broadening has made it possible to offer the course not just to first year law students, but also to graduate students in the social sciences and in international affairs, as a grounding in the legal systems that are important in their respective fields.

This post produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.

This post offers initial thoughts about the materials and links to its contents.

Though sovereign wealth funds (SWFs) have been around since the 1950s, they became much more important instruments of global finance with the maturing of the current system of globalization. Their distinguishing feature was their use of state wealth to invest outside their home states. That characteristic, when exercised by large funds (Norway, Singapore, Malaysia) or by powerful states (Russia and China) raised substantial concerns about the use of private markets to leverage public power. The economic turmoil of 2008 and thereafter, along with the advancement of quasi public self regulatory soft law (the Santiago Principles) substantially ameliorated the sense fo threat. immediately before the Originally SWFs raised concern.

By the start of the second decade of the 21st Century, then, SWFs became again he province of specialists, except for some who continued to see the transformative potential of SWFs at the intersection of public and private finance and governance systems. At the same time, SWF objectives appeared to change as well--most recently focusing on the value of SWFs as an internal ordering device. But this change has substantial ramifications, not just for any theory of SWFs but also for their role in the emerging governance systems around the evolving global financial, governmental and legal systems.

Readers may recollect that I had circulated in April this year our
analysis of the datasets relating to crimes against members of the
Scheduled Castes. Apart from showing the enormity of the phenomenon of
atrocities against members of these communities the purpose of the study
was to demonstrate the value of using crime related statistics made
publicly available by the Government of India through its Data Portal data.gov.in

I have attached to this email our preliminary
findings of an analysis of the statistics related to rape that are made
available by the National Crime Records Bureau through its own website
and through the Data Portal. A lot more analysis can be done suing this
dataset by linking it to various socio-economic variables. I hope civil
society organisations and researchers will interrogate the findings
further, delve deeper into the core of the societal problem of violence
against women and demand better performance and greater accountability
from the law enforcement machinery of the State. I have attached the PDF
file for readers' reference.

I had been writing about the U.N. Human Rights Commission's Management Plan for the next several years. See, The U.N. Human Rights Commission Issues its "OHCHR Management Plan for 2014-2017" I had suggested that "The most potentially contentious change appears to be a shift, perhaps modest, from the traditional emphasis on economic and social rights to civil and political rights. This takes the form of a new emphasis on "widening the democratic space" in states (Management Plan,
pp. 73- 83). creating It appears modest because it looks to target
"public freedoms, human rights education and the work of human rights
defenders and the media" (Management Plan p. 7)." The Management Plan was contextually driven distinguishing its political project in China and Africa, for example. And indeed, much of this work loses something through its inability to embrace the distinctive style of governance in states such as China and to seek to promote the scientific development of its socialist democracy and civil society spaces.

Building on these efforts the OHCHR has focused on the protection of what it calls a civil society space. To that end, it recently posted its "Summary of the Human Rights Council panel discussion on the
importance of the promotion and protection of civil society space -
Report of the Office of the United Nations High Commissioner for Human
Rights," A/HRC/27/33, 26 June 2014. It may be accessed in Arabic العربية, English, Français, and Español.

It is interesting that no Chinese translation is available. Like the Management Plan, much of the discussion suffers from a bias toward the Western baseline. While that baseline is indeed important and relevant to large parts of the world, it tends to marginalize other systems, particularly those of China. This was a particularly regrettable lapse on the part of the Special Rapporteur (whose remarks are summarized below). This approach was amplified in the discussion of strategies (¶¶67-79) which emphasized the centrality of the International Covenant of Civil and Political Rights ( e.g., "A suggestion was made that the Human Rights Committee prioritize the development of general comments on articles 21 (the right of peaceful assembly) and 22 (the right to freedom of association) of the International Covenant on Civil and Political Rights." ¶78). No effort was made to connect the foundational protections of the International Covenant on Economic, Social and Cultural Rights with obligations to maintain civil society spaces--an effort that itself would be worthy of more substantial study.

It is also regrettable that the statements of many participants were not made available and that many of these were relegated to the U-N- extranet pages. There is irony in this lack of transparency on a session about civil society

In its press release the OHCHR Civil Society Section noted: "The report contains a summary of the statements delivered by the Secretary-General and the Deputy High Commissioner for Human Rights, and contributions by the moderator and panellists. It summarizes the discussion in four parts: - the importance of the promotion and protection of civil society space; - the challenges that States face in their efforts to ensure space for civil society; - experiences, lessons learned and good practices with regard to space for civil society; and - strategies and steps that could be adopted to ensure a safe and enabling environment for civil society."

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Copyright; Citation and Attribution:

All essays are (c) Larry Catá Backer except where otherwise noted. All rights reserved. The essays may be cited and quoted with appropriate reference. Suggested reference as follows: Larry Catá Backer, [Essay Title], Law at the End of the Day, ([Essay Posting Date]) available at [http address].

The author holds a faculty appointment at Pennsylvania State University. Notice is hereby given that irrespective of that appointment, this blog serves as a purely personal enterprise created to serve as an independent site focusing on issues of general concern to the public. The views and opinions expressed here are those of its author. This site is neither affiliated with nor does it in any way state, reflect, or represent the views of Pennsylvania State University or any of its entities, units or affiliates.

Ravitch and Backer's Law and Religion: Cases, Materials, and Readings

3rd Edition 2015

Broekman and Backer, Signs in Law

Springer 2014

BACKERINLAW--PERSONAL WEBSITE

Here you can find my published work, manuscripts, presentations, and more!

Globalization Law and Policy Series from Ashgate Publishing

Globalization: Law and Policy will include an integrated bodyof scholarship that critically addresses key issues and theoretical debates in comparative and transnational law. Volumes in the series will focus on the consequential effects of globalization, including emerging frameworks and processes for the internationalization, legal harmonization, juridification and democratization of law among increasingly connected political, economic, religious, cultural, ethnic and other functionally differentiated governance communities. This series is intended as a resource for scholars, students, policy makers and civil society actors, and will include a balance of theoretical and policy studies in single-authored volumes and collections of original essays.

An interview with the Series EditorQueries and book proposals may be directed to:Larry Catá BackerW. Richard and Mary Eshelman Faculty Scholarand Professor of Law, Professor of International AffairsPennsylvania State University239 Lewis Katz BuildingUniversity Park, PA 16802email: lcb911@gmail.com

About Me

I hope you enjoy these essays. Each treats aspects of the relationship between law, broadly understood, and human organization. My essays are about government and governance, based on the following assumptions: Humans organize themselves in all sorts of ways. We bind ourselves to organization by all sorts of instruments. Law has been deployed to elaborate differences between economic organizations (principally corporations, partnerships and other entities), political organization (the state, supra-national, international, and non-governmental organizations), religious, ethnic and family organization. I am not convinced that these separations, now sometimes blindly embraced, are particularly useful. This skepticism serves as the foundation of the essays here. My thanks to Arianna Backer for research assistance.